HomeMy WebLinkAbout20090706 - VII-1 & VIII-C-1
To: Mayor Hicks and City Councilmembers
From: Melanie Mesko Lee
Date: July 1, 2009
Re: Proposed Ordinance Amendment and Policy Changes relating to Liquor License
Compliance Check Violations
Requested Action
Council is requested to conduct a public hearing and consider a second reading for an ordinance
amendment relating to presumptive civil penalties with regards to failure of liquor license compliance
checks or sales to a minor as well as procedure establishing a Best Practice Business Program to team
with local liquor establishments on ways to eliminate sales of alcohol to youth.
Background
The City currently has guidelines in place to provide for civil penalties in the case of liquor license
compliance check failures. These guidelines were adopted in December 2000. Over the last few months,
staff has researched some changes for consideration. The Administrative Committee of the Council
(Hollenbeck [chair], Elling Schultz, Nelson) met in late April and provided recommendation to staff to
revise the presumptive penalty process, the civil penalty guidelines, and incorporate a Best Practices
Program. Below is a highlight of these proposed changes:
Procedural Changes for Consideration—Currently, during the first violation (within 24 months), the
Council is notified of the failure and given 7 days to request a hearing of a licensee. If this hearing isn’t
requested, staff administratively processes the civil penalty. Subsequent violations must go through the
hearing process, even if the violator agrees that the violation has occurred and wishes to simply pay the
fee.
The revised process would allow staff/city attorney to submit a stipulation to the violator; if the violator
agrees to the penalty (as adopted by the Council), the presumptive penalty is then imposed, and a hearing
before the Council is not necessarily required. Before the stipulation is sent to the violator, the Council
will be notified of the failure and be given 7 days to request a hearing, similar to the current first violation
process. Additionally, licensees also have an opportunity to request a hearing. Both the City and
licensees have an opportunity for a hearing; however if both waive it, then the penalty can be applied
administratively. It is legal’s recommendation that these stipulations also be put before the Council as
Consent Agenda items.
Amount of Penalties—The Administrative Committee recommended an increase in penalty amounts,
which were last adjusted in late 2000. The proposed penalties are two-tired, one range for Best Practices
Program establishments, and one for those who do not participate in the program. The penalties can be
found in the attached proposed ordinance amendment.
Best Practices Program—the City will be rolling out a Best Practices Program to licensees with the goal
of eliminating sales to youth. This is a voluntary program, and participating licensees agree to certain
“best practices”; in exchange, if a violation does occur, the penalty tier is lower than if they were not
participating in the program. Staff is working together on finalizing the elements of the program, with the
goal to provide licensee notification this summer, and begin training opportunities this fall for businesses
interested in participating in the Best Practices Program.
Action if Approved—Should the Council approve the ordinance amendment as proposed, staff will begin
to work with licensees on the new process, and extending invitations to attend training to participate in the
voluntary best practices program. Regardless of whether they choose to participate at this time, in the
future, or not at all, all current licensees will be provided a copy of the updated code with an explanation
of the adopted changes this summer.
ORDINANCE NO. __________________, - THIRD SERIES
AN ORDINANCE OF THE CITY OF HASTINGS, MINNESOTA
AMENDING CHAPTER 111 OF THE HASTINGS CITY CODE
PERTAINING TO ALCOHOLIC BEVERAGES
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HASTINGS AS
FOLLOWS:
Chapter 111 of the Hastings City Code is hereby amended and Section 111.10 shall be
amended as follows:
§ 111.10 SUSPENSION OR REVOCATION OF LICENSE.
(A) The City Council may suspend any retail license for up to 60 days or revoke any retail
license for the sale of alcoholic beverages upon the violation of any provision or condition of this
chapter or of any state or federal law regulating the sale of alcoholic beverages. The City Council
shall revoke the license for any willful violation, which under the laws of this state, is grounds for
mandatory revocation.
(B) Before the Council shall suspend or revoke any license issued under this chapter, the
licensee shall be given at least 10-days’ notice stating the time and place of the hearing and the
charges against the licensee. The notice shall also state that the licensee may have a hearing
conducted under M.S. §§ 14.57 through 14.69 of the Minnesota Administrative Procedures Act,
as they may be amended from time to time.
(C) Presumptive Civil Penalties. The following process and presumptive penalties shall
apply only to liquor license violations involving failure of routine alcohol sales compliance
checks or sales of alcohol to underage persons. There shall be no presumptive penalties for liquor
license violations of other types and the City Council may impose any penalties allowed by law
for those violations after the notice and opportunity for hearing provided in division (B) above.
(1)
Purpose. The purpose of this section is to establish a standard by which the
City Council determines the length of license suspensions and the propriety of revocations, and shall
apply to all on-sale and off-sale licensed premises. These penalties are presumed to be appropriate
for every case; however, the Council may deviate in an individual case where the Council finds that
there exist substantial reasons making it more appropriate to deviate. When deviating from these
standards the Council shall provide written findings that support the penalty imposed.
(2)Best Practices Program. The Best Practices Program (BPP) is a program
offered by the City of Hastings with the intent to eliminate sales of alcohol to youth. Participation in
the BPP is voluntary, it is offered to both off-sale and on-sale liquor establishments, and offers
incentives to participating licensees to undertake certain practices with the objective of avoiding
sales to minors. The City of Hastings will assist participating businesses with training and a
different set of presumptive penalties will apply to those who choose to participate, should an illegal
sale to a minor occur. Licensees may enroll at any time during their license period, and will be
offered an opportunity at the time of annual license renewal. Interested licensees will provide
written intent to participate, and will be categorized as a Best Practices Business once they have
successfully completed the requirements of the program. It is the licensee’s responsibility to ensure
continued compliance with the program; the City may conduct random verification checks, and
recertification will be required during annual renewal of a liquor license. If a Best Practices
Business has two or more violations within a three year period, the City Council may choose to
disregard a business’ participation in the program and apply penalties different than the BPP
presumptive penalties.
Required Items
A minimum of 75% of alcohol selling employees (at any one time) have attended
alcohol training conducted by Hastings Police Department (or other training pre-
approved by City of Hastings)
Business has an internal program in place for providing ongoing training of both new
and current alcohol selling employees (copy of program and tracking must be
provided)
Business has an internal policy requiring identification checks for anyone appearing
to be 40 years old or under (copy of program and tracking must be provided)
Electives (must have 40 points)
10 Business has an internal employee reward/recognition program for employees who
catch any underage customer attempting to purchase alcohol
10 Business uses an automated ID card scanner system or
20 Business uses an automated ID card scanner system that is integrated into register
system*
10 Business has an internal policy setting a minimum age of 21 for employees to sell
alcohol products
10 Business agrees to meet immediately with City staff following a violation (instead of
waiting for criminal court proceedings
Total electives selected
*cannot elect both automated ID systems
(3) Underage Sales and Compliance Check Failures. The following
presumptive penalties apply to liquor license violations involving failure of routine alcohol sales
compliance checks or sale of alcoholic beverages to an underage person(s).
Violation Best Practices Business Non-Best Practices Business
st
1 $500 civil penalty $1,000 civil penalty and 3 day
license suspension
nd
2 (within 24 $750 civil penalty and 3 day $1,500 civil penalty and 6 day
months of first license suspension license suspension
violation)
rd
3 (within 24 $1,000 civil penalty and 6 day $2,000 civil penalty and 9 day
months of first license suspension license suspension
violation)
th
4 (within 24 Revocation Revocation
months of first
violation)
"Best practices" designation applies to those license holders who at the time of the violation
are registered with the City to participate and are in compliance with its alcohol "Best
Practices Program".
(a) Multiple Violations. At a licensee’s first appearance before the
City Council, the Council shall act upon all of the violations that have been alleged in the notice
sent to the licensee. The Council in that case shall consider the presumptive penalty for each
st
violation under the 1 Violation column in division (3) above. The occurrence of multiple
violations shall be a basis for deviation from the presumptive penalties in the Council’s
discretion.
(b) Subsequent Violation. Violations occurring after the notice of
hearing has been sent to the licensee, but prior to the hearing, shall be treated as a separate
violation and treated as a subsequent violation before the City Council, unless the City
Administrator and licensee agree in writing to add the violation to the appearance and hearing on
ndrdth
the initial violation for which notice was sent. The same procedure shall apply to a 2, 3, or 4
violation considered before the Council.
(c) Subsequent Appearances. Upon a second, third or fourth
appearance before the City Council by the same licensee, the Council shall impose the
presumptive penalty for the violation or violations giving rise to the subsequent appearance
without regard to the particular violation or violations that were the subject of the first or prior
appearance. However, the Council may consider the amount of time elapsed between
appearances as a basis for deviation from the presumptive penalties imposed by this section.
(d) Computation of Violations. Multiple violations are computed by
reviewing the time period of the two (2) years immediately prior to the date of the most current
violation.
(e) Stipulations in Lieu of Hearing. When a liquor license violation
involves a licensee’s failure of a routine alcohol sales compliance check or sale of alcohol to an
underage person or persons to which these presumptive penalties apply, documentation of the
illegal sale shall be sent to the City Council by either the Chief of Police or the City
Administrator, together with notice of the applicable presumptive penalty. If no Councilmember
objects to application of the presumptive penalty or otherwise requests that the matter be brought
before the Council within 7 days, the City Administrator or City Attorney may enter into a
written stipulation with the licensee which shall include a waiver of further notice and hearing by
the licensee, a recitation of stipulated facts describing the alleged violation, and setting forth the
applicable presumptive penalty to be imposed, provided that all such stipulations shall be subject
to the approval of the City Council and if such approval is not granted, the licensee shall have the
right to withdraw its waiver of hearing and to demand a hearing before the Council.
(f) Other Penalties. Nothing in this section shall restrict or limit the
authority of the City Council to suspend a liquor license up to sixty (60) days, to revoke the
license, to impose a civil fee not to exceed two thousand dollar ($2,000.00), to impose conditions,
or to take any other action in accordance with law; provided that the license holder has been
afforded an opportunity for a hearing in the manner provided by this Chapter.
(D) Costs. Once a notice of intent to revoke or suspend a license has been mailed to the
licensee, the licensee becomes responsible for all reasonable costs of investigation, administration
and hearings associated with the action as a condition of reinstatement, termination of suspension,
or dismissal of the allegations prior to a hearing.
Council member _____________________ moved a second to this Ordinance, and upon being
put to a vote it was unanimously adopted by all Council members present.
Adopted by the Hastings City Council on this _ day of _______, 2009, by the
following vote:
Ayes
Nays:
Absent:
CITY OF HASTINGS
Paul J. Hicks, Mayor
ATTEST:
Melanie Mesko Lee, City Clerk
I hereby certify that the above is a true and correct copy of the Ordinance presented to
and adopted by the City of Hastings, County of Dakota, Minnesota, on the _____ day of ______,
2009, as disclosed by the records of the City of Hastings on file and of record in the office.
Melanie Mesko Lee,
City Clerk/Assistant City Administrator
PUBLIC NOTICE
NOTICE OF PUBLIC HEARING
STATE OF MINNESOTA
COUNTIES OF DAKOTA AND WASHINGTON
CITY OF HASTINGS
Please take notice that the City Council of the City of Hastings will hold a public hearing on
Monday, July 6, 2009 at 7:00 p.m. at the Hastings City Hall to consider changes to the terms of
the compliance check civil penalties and establishing a best practices business program for liquor
licenses. A copy of the proposed changes is available at City Hall and at www.ci.hastings.mn.us.
All interested persons should attend and are invited to comment.
Ordered by the City Council on June 15, 2009.
_______________________________
Melanie Mesko Lee
City Clerk
Published:
Thursday, June 18, 2009
Posted:
Tuesday, June 16, 2009
CITY OF HASTINGS
DAKOTA COUNTY, MINNESOTA
In Re:
City of Hastings Liquor Licensing
STIPULATION OF FACTS
Complaint Against
AND CIVIL SANCTION
[insert name of establishment]
The City of Hastings and its undersigned attorney, and [insert name of establishment]
through its undersigned authorized officer, hereby agree and stipulate as follows:
1.[insert name of establishment] is licensed under Hastings City Code Chapter 111, to
operate an on-sale intoxicating liquor establishment at [insert address of establishment], in the
City of Hastings.
2.On [insert date of offense], [insert name of violator], an employee of [insert name of
establishment], did sell intoxicating liquor to an underage person in violation of State law and
Hastings City Code Section 111.10.
3.This constitutes [insert name of establishment]’s [second, third or fourth] liquor license
violation pursuant to Hastings City Code Section 111.10. City records indicate that [insert name
of establishment] violated City Code Section 111.10 on [insert date(s) of prior violation(s)].
4.Copies of the Hastings Police Department Reports regarding this incident are
incorporated into this Stipulation by reference.
5.[insert name of establishment]’s liquor license is suspended for [second offense: two
days] [third offense: five days] [fourth offense: revocation of liquor license]. The imposition of
the suspension shall be scheduled by City staff and the following additional condition applies:
a)Payment of civil sanction in the amount of [second offense: $750.00] or [third
offense: $1,000.00] or [fourth offense: $2,000.00] by [insert date payment is due].
6.[insert name of establishment] waives its right to the hearing provided by Minnesota
Statutes §340.415 and Hastings City Code Section 111.10.
7.The civil sanction set forth in Section 5 is contingent upon the Hastings City Council’s
approval. If the City Council rejects the sanction agreed to in this Stipulation in favor of more
severe sanctions, [insert name of establishment] has the absolute right to withdraw its waiver of
hearing and to have a hearing before the City Council.
FLUEGEL LAW FIRM P.A.
Dated: July 1, 2009
BY:
Daniel J. Fluegel, Atty. Reg. #0303112
Attorney for the City of Hastings
1303 South Frontage Road, Suite 5
Hastings, MN 55033
Telephone: (651)438-9777
Dated: [INSERT NAME OF ESTABLISHMENT]
BY:
TITLE:
July 1, 2009
PERSONALLY SERVED UPON [INSERT NAME OF BUSINESS]
Mr. or Mrs. ___________, General Manager
[Insert name of Establishment]
[Insert address of Establishment]
[Insert City, State and Zip Code]
RE: HEARING NOTICE
Alleged Intoxicating Liquor License Violation at [insert name of establishment]
Dear Mr. or Mrs. :
Records of the City of Hastings indicate that the following violation of State law and the
Hastings City Code have occurred at [insert name of establishment]:
1.On [insert date of offense], [insert name of violator], an employee, did sell intoxicating
liquor to an underage person in violation of State law and Hastings City Code Section
111.10.
Pursuant to Hastings City Code Section 111.10, the City Attorney will be presenting the
alleged intoxicating liquor license violation before the Hastings City Council on [insert date of
hearing], [insert time of hearing] p.m. Enclosed please find a Hearing Notice regarding the
alleged liquor violation.
Minnesota Statutes §340A.415 and Hastings City Code Section 111.10 provide that the
City Council may revoke a license, suspend a license for up to sixty days, or impose a civil fine
not exceeding $2,000.00 for each violation of State law or the City’s intoxicating liquor and 3.2
percent malt liquor ordinance. In addition, Hastings City Code Section 111.10 provides
presumptive civil penalties for violations of laws relating to alcoholic beverages.
In order to avoid a public evidentiary hearing before the City Council on the alleged
violation, the City of Hastings and you may enter into a Stipulation of Facts and Civil Sanction.
A proposed Stipulation is enclosed. If a Stipulation is executed, it would be presented to the City
Council and no hearing would be held.
[Insert Name of Establishment]
July 1, 2009
Page Two
Once you and your attorney have had a chance to review the Notice and Stipulation,
please contact the undersigned.
Very truly yours,
FLUEGEL LAW FIRM P.A.
Daniel J. Fluegel
Attorney for the City of Hastings
DAF/lmp
Enclosures: Hearing Notice, Stipulation of Facts and Civil Sanction & Police Reports
cc: Melanie Mesko-Lee, City Clerk and Assistant City Administrator
CITY OF HASTINGS
DAKOTA COUNTY, MINNESOTA
In Re:
HEARING NOTICE REGARDING
City of Hastings Liquor Licensing
ALLEGED LIQUOR LICENSE
Complaint Against
VIOLATIONS
[insert name of establishment]
TO: [INSERT NAME OF ESTABLISHMENT, ADDRESS OF ESTABLISHMENT],
HASTINGS, MINNESOTA, 55033}
FROM: DANIEL J. FLUEGEL, CITY ATTORNEY FOR THE CITY OF HASTINGS
YOU, AS A LIQUOR LICENSEE, ARE HEREBY INFORMED that on the _____ day
of _________, 20___, at ____ p.m., in the Council Chambers of the Hastings City Hall, 101
Fourth Street East, Hastings, Minnesota, the Hastings City Council will conduct a hearing,
pursuant to Section 111.10 of the Hastings City Code and Minnesota Statutes §340A.415,
regarding allegations that the licensee violated provisions of State law and City ordinances
regulating liquor establishments, as follows:
1.On [insert date of offense], [insert name of violator], an employee of [insert name of
establishment] did sell intoxicating liquor to an underage person in violation of State law
and Hastings City Code Section 111.10.
If your establishment is found to be in violation as charged, the City Council may revoke
the license, impose a suspension for up to sixty (60) days, impose a civil fine not to exceed
$2,000.00 for each violation, or a combination of suspension and a civil fine.
You are entitled to be present at the hearing and to be represented by an attorney. If the
hearing is contested, you are entitled to call witnesses, present probative evidence, cross-examine
witnesses, and submit rebuttal evidence, all as allowed by Minnesota Statutes §14.60.
FLUEGEL LAW FIRM P.A.
Dated: July 1, 2009
BY:
Daniel J. Fluegel, Atty. Reg. #0303112
Attorney for the City of Hastings
1303 South Frontage Road, Suite 5
Hastings, MN 55033
Telephone: (651)438-9777